USF & Axcess Global Sciences v. Perfect Keto: Six Ketosis Patents Settled
Three plaintiffs — the University of South Florida, its Research Foundation, and Axcess Global Sciences — brought a six-patent infringement action against Perfect Keto in Delaware over BHB salt compositions and ketosis-inducing products. The case closed with a stipulated dismissal with prejudice after a settlement agreement signed on May 1, 2024, ending 533 days of litigation.
BHB ketosis patent portfolio triggers settlement in Delaware
Filed on November 22, 2022, in the District of Delaware before Judge Gregory B. Williams, this infringement action centred on six US patents covering beta-hydroxybutyrate (BHB) mixed salt compositions and methods for producing and sustaining elevated ketosis. The plaintiffs — the University of South Florida Board of Trustees, the USF Research Foundation, and Axcess Global Sciences, LLC — asserted that Perfect Keto, LLC and Perfect Keto Holdings, LLC infringed proprietary formulations spanning electrolyte-balanced ketosis products and dietary supplement compositions.
The case closed on May 8, 2024, through a stipulated dismissal with prejudice filed under Federal Rule of Civil Procedure 41(a)(1)(A)(ii), pursuant to a settlement agreement dated May 1, 2024. Dismissal with prejudice extinguishes the plaintiffs’ right to refile the same claims, and the parties negotiated a cost-neutral outcome in which each side bears its own legal fees. Notably, the settlement agreement requested that the court retain jurisdiction to enforce its terms, suggesting ongoing obligations or licensing conditions.
The 533-day duration suggests substantive engagement before resolution — consistent with discovery activity or licensing negotiations running parallel to litigation. The public record does not disclose financial terms, royalty arrangements, or whether Perfect Keto obtained a licence to the asserted patents. The university-led plaintiff structure, combining academic IP ownership with a commercial licensing vehicle (Axcess Global Sciences), is a pattern increasingly common in university tech-transfer enforcement strategies.
Filing to Dismissed with Prejudice in 533 days
533-day case lifecycle — above median for settled Delaware district patent cases
Settled with prejudice: what the Rule 41 dismissal means for both parties
Rule 41(a)(1)(A)(ii) stipulated dismissal explained
A dismissal under Fed. R. Civ. P. 41(a)(1)(A)(ii) requires agreement from all parties and is filed jointly. ‘With prejudice’ means the plaintiffs are permanently barred from re-asserting the same infringement claims against Perfect Keto on these six patents. The court retaining jurisdiction to enforce the settlement agreement is a standard mechanism where ongoing obligations — such as licence payments or product restrictions — may require future judicial oversight.
Permanent bar on refilingPatent holders secure enforceable settlement terms
By securing a settlement with prejudice and requesting court-retained jurisdiction, the USF entities and Axcess Global Sciences likely obtained enforceable commercial terms — potentially a licence, royalty stream, or product restrictions — without the cost and risk of trial. The cost-neutral fee arrangement is common in negotiated resolutions and does not indicate weakness; universities often prioritise licensing revenue over litigation damages. The settlement preserves the validity of all six patents for future enforcement against other parties.
Patents remain valid for othersPerfect Keto resolves infringement exposure across six patents
Perfect Keto’s settlement with prejudice eliminates exposure to damages, injunctions, and ongoing litigation costs tied to all six asserted BHB patents. However, court-retained jurisdiction and the structured settlement agreement suggest Perfect Keto accepted ongoing obligations — which may include licence fees, product reformulation, or sales restrictions. The 533-day litigation timeline before settlement implies Perfect Keto engaged seriously with the merits before reaching terms, consistent with a negotiated rather than capitulatory resolution.
Ongoing obligations likelySix-patent BHB portfolio signals sector-wide enforcement risk
The settlement — rather than a validity challenge or IPR — leaves the six USF/Axcess patents intact and potentially licensed, signalling continued enforcement risk for the broader ketogenic supplement market. Competitors selling BHB salt products or electrolyte-ketosis formulations should assess exposure to this portfolio. The combination of academic patent ownership (USF) with a commercial enforcement vehicle (Axcess Global Sciences) suggests an active licensing programme likely extending beyond this single defendant.
Active BHB licensing programme likelyFull party and counsel information
| Role | Name | Type | Detail |
|---|---|---|---|
| Plaintiff | University of South Florida Board of Trustees | Individual | University tech-transfer entities and commercial licensee — holders of 6 BHB ketosis patentsSearch in Eureka ↗ |
| Co-Plaintiff | University of South Florida Research Foundation, Inc. | Company | Search in Eureka ↗ |
| Co-Plaintiff | Axcess Global Sciences, LLC | Company | Search in Eureka ↗ |
| Defendant | Perfect Keto, LLC | Company | Perfect Keto, LLC and Perfect Keto Holdings, LLC — ketogenic supplement product companySearch in Eureka ↗ |
| Co-Defendant | Perfect Keto Holdings, LLC | Company | Search in Eureka ↗ |
| Plaintiff counsel | Daniel Taylor | Attorney | Counsel for University of South Florida Board of TrusteesSearch in Eureka ↗ |
| Plaintiff counsel | Kathleen M. Miller | Attorney | Counsel for University of South Florida Board of TrusteesSearch in Eureka ↗ |
| Plaintiff counsel | Kathleen M. Wade | Attorney | Counsel for University of South Florida Board of TrusteesSearch in Eureka ↗ |
| Plaintiff counsel | Richard E. Fee | Attorney | Counsel for University of South Florida Board of TrusteesSearch in Eureka ↗ |
| Plaintiff law firm | Smith, Katzenstein & Jenkins LLP | Law Firm | Representing University of South Florida Board of TrusteesSearch in Eureka ↗ |
| Defendant counsel | Kevin J. O’Shea | Attorney | Counsel for Perfect Keto, LLCSearch in Eureka ↗ |
| Defendant counsel | Sean M. Brennecke | Attorney | Counsel for Perfect Keto, LLCSearch in Eureka ↗ |
| Defendant law firm | Lewis Brisbois Bisgaard & Smith LLP | Law Firm | Representing Perfect Keto, LLCSearch in Eureka ↗ |
| Presiding judge | Judge Gregory B. Williams | Judge | Delaware District CourtSearch in Eureka ↗ |
Official order — verbatim text
The stipulated dismissal with prejudice, filed jointly under Rule 41(a)(1)(A)(ii) pursuant to a May 1, 2024 settlement agreement, confirms a negotiated resolution on agreed commercial terms. The ‘with prejudice’ designation permanently forecloses the plaintiffs from refiling these specific infringement claims against Perfect Keto on the six asserted patents. The parties’ explicit request for the court to retain jurisdiction to enforce the agreement is legally significant — it transforms the settlement into a court-enforceable instrument, meaning future breaches can be addressed through contempt or specific performance rather than a new lawsuit. The cost-neutrality provision is standard in patent settlements and does not itself indicate the relative commercial strength of the resolution.
US9138420B2 and five further BHB ketosis patents — composition and method claims
The six asserted patents — led by US9138420B2 (application US14/455385) and including US11020362B2, US10292952B2, US11241403B2, US10646462B2, and US9675577B2 — originate from research conducted at the University of South Florida. They collectively protect BHB mixed salt compositions, methods for inducing and sustaining elevated ketosis, and electrolyte-balanced ketogenic formulations. Application dates span from 2014 to 2021, covering both foundational composition claims and later method and formulation refinements.
This portfolio represents a foundational position in exogenous ketone supplement technology. BHB salts are the active ingredient in a broad range of commercial ketogenic products sold under multiple brand names. The breadth of the six patents — covering compositions, electrolyte balance, and methods of use — creates a multi-layered claim structure that is difficult for competitors to design around without comprehensive FTO analysis. The commercial enforcement arm (Axcess Global Sciences) suggests the portfolio is actively licensed across the sector, making this settlement consistent with a broader monetisation strategy.
Should your BHB supplement product be cleared against this patent portfolio?
Any company developing, manufacturing, or selling exogenous ketone products — including BHB salt powders, drinks, capsules, or electrolyte-ketosis blends — should assess exposure to the USF/Axcess Global Sciences portfolio before product launch or market expansion. With six granted US patents spanning composition, method, and formulation claims, standard single-patent clearance is insufficient. The settlement with Perfect Keto leaves all six patents valid and potentially licensed, signalling continued enforcement.
PatSnap Eureka’s FTO Search Agent enables R&D and IP teams to map product formulations against each of the six asserted claims simultaneously, identify design-around opportunities, and flag dependent claims that may survive even if lead claims are challenged. Eureka also tracks new continuation applications that may extend the portfolio’s effective life — critical for teams planning product lines with multi-year development cycles in the ketogenic nutrition space.
Run a freedom-to-operate analysis on US9138420B2 to assess your product’s exposure
Run FTO in Eureka →Similar BHB ketosis patent infringement cases in US district courts
Explore related exogenous ketone and BHB supplement patent disputes litigated in Delaware and other US district courts, including university tech-transfer enforcement actions.
What this case signals for the ketogenic supplement IP landscape
A six-patent BHB portfolio from a university tech-transfer programme resolving via settlement with prejudice is a marker of sustained enforcement intent.
University BHB portfolios are now active enforcement tools
The USF–Axcess Global Sciences enforcement structure — pairing academic patent ownership with a commercial licensing entity — is a maturing university tech-transfer model. Ketogenic supplement brands selling BHB salt products should treat this portfolio as an ongoing licensing risk, not a one-off dispute. The settlement’s prejudice terms and retained court jurisdiction suggest terms designed to outlast this single defendant.
Court-retained jurisdiction is the key enforcement signal
When parties request that a court retain jurisdiction to enforce a settlement, it typically signals structured ongoing obligations — royalties, production limits, or reformulation requirements. For Perfect Keto’s competitors, this structure indicates the patent holders have a repeatable enforcement model and the commercial infrastructure to pursue it systematically across the sector.
Trustees v Perfect — key questions answered
The plaintiffs asserted six US patents: US9138420B2, US11020362B2, US10292952B2, US11241403B2, US10646462B2, and US9675577B2. These patents cover beta-hydroxybutyrate mixed salt compositions, methods for producing elevated and sustained ketosis, and electrolyte-balanced ketogenic formulations developed at the University of South Florida.
The case was resolved via a stipulated dismissal with prejudice under Federal Rule of Civil Procedure 41(a)(1)(A)(ii), pursuant to a settlement agreement dated May 1, 2024. Each party bears its own costs and attorneys’ fees. The court retained jurisdiction to enforce the settlement’s terms, suggesting ongoing obligations between the parties.
Dismissal with prejudice permanently bars the plaintiffs — USF Board of Trustees, USF Research Foundation, and Axcess Global Sciences — from bringing the same infringement claims against Perfect Keto on these six patents. The dismissed claims cannot be refiled. However, the patents remain valid and enforceable against third parties not party to this settlement.
No. A settlement dismissal does not adjudicate patent validity. The six BHB patents asserted in this case remain granted and enforceable. Because Perfect Keto settled rather than pursuing an IPR or invalidity defence through trial, the validity of the claims was never tested before the PTAB or the district court on the merits.
Axcess Global Sciences, LLC is a commercial licensing entity that co-holds rights to the USF BHB patent portfolio. It joined the University of South Florida Board of Trustees and the USF Research Foundation as a co-plaintiff. This structure — pairing academic patent ownership with a commercial enforcement vehicle — is typical of university tech-transfer programmes designed to pursue licensing revenue through litigation or negotiated agreements.
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